OFFICIAL TRUSTEE OF WEST BENGAL Vs. MANICHOOR GHOSHA

JUDGEMENT

(1.) This is an originating summons for construction of the will of one RAI Bahadur Ganendra Chandra Ghosh, since deceased. It appears that he executed a Will on the 3rd February, 1934 in respect of movable and immovable assets. By the said will the testator had revoked his previous dispositions and the predecessor-in-interest of the plaintiff, that is to say, the Official Trustee of Bengal became the sole executor and the trustee. Clauses 16 and 17 of the said Will provide as follows :

(2.) The main question, however, is whether such distribution or devolution in the facts and circumstances of the case that happened, should be governed by the principle of per stirpes or not. That will depend on the construction of Clause 17 of the Will set out before. The testator has provided that upon the death of any of the beneficiaries mentioned the executor-trustee shall make over the share in the corpus represented by the income payable to him in Clause 16 to his lineal male descendants then living per stirpes and not by per capita. By a proviso he has stipulated that if such beneficiary or beneficiaries should die without leaving any lineal male descendants, him or them surviving, the benefit thereby intended to be conferred on his or their lineal male descendants should be taken by the surviving beneficiaries and the lineal male descendants of such beneficiaries as might have died leaving such descendants absolutely for ever. If the two situations, that is to say, the situation contemplated by the main clause of the said Clause 17 and the situation contemplated by the proviso are treated as part of the same clause and the proviso being treated only as an exception to the main clause, then it was argued that as the testator had mentioned that the lineal male descendants then living should take by per stirpes and not by per capita, that intention should also guide the proviso. It is indisputable that normally if there is no specific or clear expression, the devolution should take place by principle of per capita and not by principle of per stirpes. These principles are well settled. Reliance in this connection may be placed on the observations in the case of In re: Jeeves -- Morris -- Williams v. Haylett, (1949) 1 Ch 49; in the case of Jeffrey (deceased) Welch v. Jeffrey, (1948) 2 All ER 131; and Jarman on Wills, 8th Edition 1583. Therefore, here in this case the testator was obviously aware of the normal rule and, therefore, by use of clear expression in the first part of Clause 17 he has eliminated the operation of the principles of per capita and has provided for the principle of per stirpes. The question, is, whether the proviso should be guided by that principle of the substantive provision.

(3.) If the proviso is treated as merely a proviso and part of the main clause then there being clear expression of the testator the principle of per stirpes and not per capita should be the guiding factor. If on the other hand, the proviso is construed as an independent provision though contained in a proviso to guide a different situation then contemplated by the main part of the clause, then there being no expression of the testator that the said situation would also be guided by the principle of per stirpes and not the normal principle of per capita, in my opinion, it should be governed by the principle of per capita. In construing the entirety of Clause 17 it appears to me that the situations contemplated by the main substantive part of Clause 17 and the proviso are really two independent provisions of the Will and the latter provision should not be construed as merely a proviso to the first provision though couched in the expression of the proviso. If these two are intended to be two substantive provisions, then there being no express will of the testator that the principle of per stirpes should govern, in my opinion, the principle of per capita which is the normal rule should govern. There is a further aspect to be borne in mind. The descendants are now the beneficiaries upon whom the interest has devolved upon the death of Durgagati. It would be more equitable to construe that the testator intended that they should share equally in the contingency that has happened. Reliance in this connection may be placed on the observations of the Judicial Committee in the case of Venkata Narasimha Row v. Parthasarathy Appa Row, (1913) 41 Ind App 51 at p. 70 (PC). In the aforesaid view of the matter I answer question (b) in the negative and question (c) in the affirmative.